Townsend v. Gordon
| Decision Date | 03 April 1944 |
| Docket Number | No. 11.,11. |
| Parties | TOWNSEND v. GORDON et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Suit by Glen C. Townsend, as executor of the last will and testament of Jacob Gordon, deceased, against Samuel Gordon, Eva Galinsky Baird, and others for construction of decedent's will, wherein Samuel Gordon filed a cross-bill seeking a determination of heirs. From a decree construing the will, Samuel Gordon appeals, and from that portion of decree determining the heirs of decedent, Eva Galinsky Baird and others cross-appeal.
Decree affirmed.
WIEST, J., dissenting.Appeal from Circuit Court, Emmet County, in Chancery; Parm C. gilbert, judge.
Before the Entire Bench.
Shapero & Shapero, of Detroit, for appellant Samuel Gordon.
Benjamin V. Halstead, of Petoskey, for appellee Glen C. Townsend.
Crawford S. Reilley and Louis Smilansky, both of Detroit, for cross-appellants herein named.
Jacob Gordon of Petoskey, Michigan, died on December 5, 1940, leaving a last will which was admitted to probate on January 28, 1941. The first four clauses consist of directions in regard to payment of debts, purchasing of cemetery lot, care of the grave and monument and bequests of $1,000 each to two of testator's sisters. The remaining clauses, some of which give rise to the questions involved in this case, are as follows:
‘5. The residue of my estate I leave to my executor, who shall dispose of same as he shall best determine.
‘6. I direct that all of my property of which I may have title at the time of my death be sold and the proceeds disposed of as above outlined.
‘7. It is my request that my executor be not required to furnish bond in the administration of my estate.
‘I do hereby name Glen C. Townsend, of Petoskey, Michigan, as executor of this, my last will and testament.’
No question is raised as to the proper execution of the will or the testamentary capacity of the testator. Plaintiff as executor filed a bill asking the court to construe the will. He alleged that defendant and appellant Samuel Gordon of Detroit, Michigan, claimed that he was the son and sole heir at law of testator and entitled to the residue of the estate; that other defendants are, or claim to be, brothers, sisters, nephews and nieces of testator, and they deny that Samuel Gordon is the son of testator and assert that they are the sole heirs at law. Plaintiff further alleged that disagreement had arisen as to clause 5 of the will, and that Samuel Gordon claims it is so indefinite and uncertain that it is of no legal effect and results in intestacy as to such residue, and that he, as the sole heir at law, is entitled to receive it. Other defendants allege that Samuel Gordon, whether he be the son and sole heir at law or not, is not entitled under the will or otherwise to any portion of the residue, which, they assert, is left to the plaintiff so dispose of as he shall best determine. Some of the defendants allege that it was the intention of the deceased to leave the residue to the plaintiff so that he could distribute it among those of his family who were most needy and that no part of the residue was to be distributed to any one claiming to be the son of testator.
Defendant Samuel Gordon in his cross-bill further alleged that he sought a determination of heirs in the probate court but that his application had been resisted, and that the probate court had failed to make a determination, and he, therefore, asked the chancery court in his cross-bill to make such determination.
The main question presented is whether or not plaintiff in his individual capacity is entitled to such residue to dispose of as he shall best determine, or, in other words, as the trial judge held, did he take beneficially so that he may do whatever he pleases with such residue? On the other hand, is he merely an executor or trustee under a provision which is so indefinite in its terms that intestacy results? The trial judge held that the wording of the will was plain and unambiguous and that it did not require extrinsic evidence to determine its meaning. The question of whether Samuel Gordon was the son of deceased was submitted to the jury on a special record; they found in his favor.
Appellant attacks the finding of the lower court that the plaintiff is entitled beneficially to such residue, and the other defendants cross-appeal from a determination in the chancery suit that appellant is the son of testator. The latter contend that the determination of heirs is solely within the jurisdiction of the probate court. Samuel Gordon in a motion to amend the grounds of appeal also claims that the court erred in excluding a transcript of the testimony of plaintiff in the probate court taken at the hearing on the petition for admission of the will to probate and certified to by a court stenographer. In this testimony, plaintiff, when asked whether he claimed any interest in the residuum, answered: ‘Not a nickel,’ and that it should go to the heirs that the court shall determine. The testimony in the probate court further showed that testator had a joint bank account with Mr. Townsend, the nature of which was not disclosed. In coming to our conclusion, we have considered the testimony in the probate court.
Deceased at the time of his death was possessed of personal property of the value of $15,000 or thereabouts. Mr. Townsend was vice president of the First State Bank of Petoskey, Michigan. There is no claim that he was a lawyer. He drew the will and it was witnessed by two bank employees. He had been in the confidence of testator for 15 years and had discussed with him his family as well as his financial affairs.
Appellant claims that the words ‘dispose of same’ by leaving it to the executor eo nomine without designating him until later in the will is determinative of the fact that plaintiff took the residue as executor to be turned over by him to testator's heirs and that it was not to belong to him beneficially. There might be some force in this argument were it not for the words he ‘shall dispose of the same as he shall best determine.’ It is also claimed that the use of the word ‘leave’ instead of the word ‘give’ or ‘bequeath’ shows a lack of intent to make a beneficial gift. We believe that the popular and ordinary use of the word ‘leave’ is the same as the more technical word ‘bequeath,’ and when followed by words investing one with the right of disposition ‘as he shall best determine,’ the intent clearly appears that the residue was left as a beneficial bequest to plaintiff whose name appears further down in the will.
The sixth clause directing that the property be sold and the proceeds disposed of as outlined again indicates the fact that the executor was to take the proceeds from the sale of the property and dispose of it as he should deem best. It amounted legally to an absolute bequest to Mr. Townsend.
It is not necessary to cite authority that the established rules of law provide that the will must be read as a whole, that the intent of the testator must prevail, and that where there are bequests in the will as to the disposition of the residue, intestacy will not be presumed unless so provided by the will or the language or lack of language used necessitates such a result.
The real question in the case, as we view it, is whether plaintiff took the residue absolutely and beneficially or merely as a trustee. If he took in the latter capacity, the trust must fail for indefiniteness, and the residue would have to be turned over to the legal heirs. Counsel have assisted us with a careful review of many cases which they rely on. We find a bewildering number of authorities. Counsel for Samuel Gordon largely rely on Abrey v. Duffield, 149 Mich. 248, 112 N.W. 936. There the will provided that all real estate and personal property was given, devised and bequeathed to Mr. Duffield as executor and trustee to whom testatrix committed it with instructions as far as he could to carry out her wishes as therein expressed. She provided a trust for the support of her son during his lifetime and in case any remainder were left in his hands, her trustee should appropriate it towards defraying the expenses of the trust or in such other or different manner as he might deem best. The court divided five to three, the majority holding that inasmuch as Mr. Duffield was testatrix' attorney and was familiar with the phrases and language commonly used to create and devise a bequest, the...
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